OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GLENN H. DAVIDSON, United States District Judge.

Presently before the court is the Defendant's motion for summary judgment. Upon due consideration, the court finds that the motion should be granted.

A. Factual Background

The Plaintiff, Cynthia Huddleston, was an employee for Defendant Kimberly-Clark Corporation in Corinth, Mississippi. Huddleston began working for Kimberly-Clark in November of 1984. Throughout most of her employment, Huddleston worked at a mill in Corinth where an oil sorbent is manufactured. Due to health problems, Huddleston began working at the front desk on or about January of 2000 through April of 2001. Huddleston stated that she had to leave her job in manufacturing because of problems with her feet swelling and because she found out she had hypertension. On or about April 30, 2001, Huddleston took disability leave and has not returned to work. Huddleston stated that her injuries consisted of: swollen feet, sarcoidosis, shortness of breath, chest pain, fatigue, nose bleeds and headaches.

Huddleston asserted that she was injured in the course and scope of her employment at Kimberly-Clark due to her exposure to various chemicals. Huddleston also stated that Kimberly Clark caused these injuries by failing to show her how to properly wear headgear, failing to properly conduct air testing, and failing in various ways to address safety concerns.

Plaintiffs filed this suit in June of 2001 in the Circuit Court of Alcorn County, Mississippi, alleging various causes of action against Defendant Kimberly-Clark. Although it is not entirely clear from the complaint exactly what causes of action Plaintiffs have stated, their response states that they have asserted claims for, inter alia, toxic tort or strict liability for ultrahazardous activities, assault and battery, intentional misrepresentation and violation of the implied covenant of good faith and fair dealing in the employment contract. The Defendant removed the action to this court based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Thereafter, the Defendant filed this motion for summary judgment.

B. Summary Judgment Standard

On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case"). Under Rule 56 (e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986).

C. Discussion

The basis for Defendant's summary judgment motion is that the Mississippi Worker's Compensation Act, Miss. Code § 71-3-9, ("Act"), provides the exclusive remedy when a worker is injured in the course and scope of her employment. Plaintiffs argue that the acts of Kimberly-Clark were intentional torts and as such, the Act is not the exclusive remedy in this case. The complaint alleges, in pertinent part, that Defendant knew that it was exposing its employees, particularly Cynthia Huddleston, to dangerous chemicals and a dangerous work environment and Defendant has willfully exposed Plaintiff Cynthia Huddleston to the dangerous chemicals with disregard for her health and safety. The complaint further states that Defendant has knowingly engaged in a dangerous activity and exposed its employees for the sole purpose of increasing its profits.

The Mississippi Workers' Compensation Act was enacted in 1948 in order to provide an assured recovery to injured employees and their dependents. Stanley v. McLendon, 70 So.2d 323 (Miss. 1954). With the advent of workers' compensation, the Mississippi worker gained the right to make a claim for a job-related injury regardless of fault, but lost the right to sue his employer in a civil tort action. Mullins v. Biglane Operating Co., 778 F.2d 277, 278 (5^th Cir. 1985). Although there are certain situations where the Act does not apply, in general, section 71-3-9 provides that workers' compensation is the exclusive remedy of those who are covered. However, the Mississippi Supreme Court has recognized a narrow exception to this exclusivity provision which allows an injured employee to recover for intentional torts. Griffin v. Futorian Corp., 533 So.2d 461, 463 (Miss. 1988); Miller v. McRae's, Inc., 444 So.2d 368, 371-72 (Miss. 1984). In order for Huddleston's claims to avoid the Mississippi Workers' Compensation Exclusive Liability Provision: (1) the injury must have been caused by the willful act of another employee acting in the course of employment and in the furtherance of the employee's business, and (2) the injury must be one that is not compensable under the act. Griffin, 533 So.2d at 463 (citingMiller, 444 So.2d at 371-72). As this is a diversity-based case, the court is bound by the Mississippi court's pronouncements and its analysis of the relevant statute.

Peaster v. David New Drilling Co., 642 So.2d 344 (Miss. 1994), involved a wrongful death suit by the employee's heirs after an employee was killed while assisting in moving a portable oil rig. The complaint alleged that the defendants "intentionally, willfully and in a grossly negligent manner caused the death" of the employee. Peaster, 642 So.2d at 345. The Mississippi Supreme Court ultimately held that the case did not come within any intentional tort exception. Id. at 347. The court discussed the similar case of Griffin, 533 So.2d 461, which involved a tort action by an employee against his employer for injuries while operating a large lumber machine saw in the course and scope of his employment. Griffin alleged that the employer "willfully, consciously and intentionally ordered him to continue working in and around those dangerous conditions which were substantially certain to cause grievous and horrible injuries." Id. at 463. Griffin alleged that he had warned the plant manager of the unsafe working conditions. The Mississippi Supreme Court found that the action against the employer was barred by the exclusive remedy provisions of the Act. The court stated:

Dunn, Mississippi Workmen's Compensation, (3d ed. 1982 Supp. 1984), notes that in order for a willful tort to be outside the exclusivity of the Act, the employee's action must be done "with an actual intent to injure the employee. It is not enough to destroy the immunity that the employer's conduct leading to the injury consists of aggravated negligence or even that the conduct goes beyond this to include such elements as knowingly permitting hazardous conditions to exist or willfully failing to furnish a safe place to work or knowingly ordering the employee to perform a dangerous job. [Footnote omitted]." Id. at § 22.

Even more recently, the Mississippi Supreme Court has "held that a mere willful and malicious act is insufficient to give rise to the intentional tort exception to the exclusive remedy provisions of the Act." Blailock v. O'Bannon, 795 So.2d 533, 535 (Miss. 2001). There must be a finding of an "actual intent to injure." Blailock, 795 So.2d at 535. Reckless or grossly negligent conduct is not enough to remove a claim from the exclusivity of the Act. Id. (citing Peaster, 642 So.2d at 348, 349).

Defendant argues that the allegations merely amount to negligence. Defendant notes that throughout her deposition, Huddleston mentioned that her injuries resulted from Kimberly-Clark's failure to act. Plaintiffs do not cite any Mississippi cases that are factually similar where a court has held that the Act did not bar a suit against the employer. To allow the Plaintiffs' claim here would be to expand the exception created by the Mississippi Supreme Court in Miller. In Miller, the allegation was of the intentional tort of false imprisonment. The Miller plaintiff was deliberately and intentionally held against her will.

As far as her assault and battery claim, Plaintiffs have not cited any Mississippi cases for the proposition that inhaling chemicals in the course of employment can amount to an intentional tort. Similarly, Plaintiffs do not cite any Mississippi cases where a court has allowed a claim based on breach of contract by the employer to provide a safe place to work to go to trial as an exception to the Act. In Williams v. Munford, Inc., 683 F.2d 938, 940 (5^th Cir. 1982), the plaintiff also advanced a theory that her injuries resulted from a breach of contract by her employer to provide her a safe place to work and added that in view of the prior robberies and failure to furnish safeguards, this breach was so callous and reckless as to amount to an intentional tort. The Fifth Circuit rejected those contentions and stated:

In the first place, . . . acceptance [of this argument] would go far to circumvent the entire policy of the Mississippi compensation plan, a policy to provide scheduled compensation for job-related injuries in exchange for withdrawing all other remedies for them. It is patent, for example, that suits for many such injuries could be cast in the form of actions for breach of implied contract and, given the prospect of larger recoveries, many would be were that option available. In the second place, . . . Mississippi courts have steadfastly rejected similar attempts to endrun the compensation system . . . .

The court is of the opinion that Plaintiffs are barred by the Act from pursuing this tort remedy against the Defendant employer.

Finally, Plaintiffs point out that Defendant has denied Huddleston's claim for workers' compensation benefits. The court does not have the benefit of any medical testimony or other evidence presented to the Defendant before this decision was made. However, if Plaintiffs feel the decision to deny benefits was in error, their possible remedies include an appeal of the denial, or perhaps a suit based on a bad faith refusal to pay benefits, but not an independent tort action against the employer for causing the injuries.

D. Conclusion

In sum, the court concludes that after examining relevant state law, the Mississippi Workers' Compensation Act precludes this suit. Therefore, the Defendant's motion for summary judgment shall be granted, and Plaintiffs' claims shall be dismissed.

A separate order in accordance with this opinion shall issue this day.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Pursuant to an opinion issued this day, it is hereby ORDERED that

(1) the Defendant's motion for summary judgment (docket entry 14) is GRANTED;

(2) the Plaintiff's claims are DISMISSED WITH PREJUDICE; and

(3) this case is CLOSED.

All memoranda, depositions, declarations, and other materials considered by the court in ruling on this motion are hereby incorporated into and made a part of the record in this action.